Strong constitutionalism usually conceives rights as instruments for protecting people. The problem with this conception is that it generates legal alienation, since it views people as passive recipients of protection, which is an exclusive matter for the state and, ultimately, for judicial review. In contrast, deliberative constitutionalism gives people an active role in deliberating about rights, among themselves as well as between them and the state. However, despite the development of deliberative constitutionalism, it is not yet clear what this view of rights requires of judicial review. Accordingly, this contribution to the Federal Law Review’s symposium issue on deliberative rights theory argues for deliberative judicial review, which is a form of judicial review that, by respecting and promoting democratic deliberation, offers better protection of rights, as well as greater impartiality and legitimacy. In support of this argument, the article first makes explicit that the guide that should orient judicial review is not deference or activism but rather democratic deliberation. Next it states that, from this guide, a form of judicial review should be inferred that is not merely substantial or merely procedural, but rather semiprocedural. It then argues that, notwithstanding contextual turns, weak constitutionalism combined with channels of social dialogue offers a better institutional basis for deliberative judicial review than strong constitutionalism. Lastly, it concludes that deliberative judicial review respects and contributes to articulating rights without legal alienation, i.e. through dialogue among all potentially affected persons.

This article maps out and evaluates the rise of ‘Deliberative Rights Theory’ (‘DRT’), a novel field of human rights analysis drawing on ideas from deliberative democracy. Deliberative democracy addresses dilemmas such as how deliberative and democratic inputs into public decision-making can each be influential, without either one dominating the other. This is especially apt for human rights, as settling complex and contentious rights cases (eg on COVID-19 vaccination, internet speech or assisted dying) calls for both technical deliberation and democratic input. There is an acute risk of noncompliance with – or even backlash against – rights decisions that lack either type of input. DRT’s normative strand of research explores conditions for uncoerced interactions between diverse participants in rights decision-making (eg ‘reasoned persuasion’, ‘epistemic diversity’ and ‘temporal deferral’). These conditions allow for an ‘integration’ of both deliberation and democracy in the course of decision-making about rights. This relatively nuanced and promising answer to the deliberation-democracy dilemma helps to account for DRT’s rising prominence. By contrast, ‘strategic’ approaches expect participants to leverage their status or power to push for outcomes they favour. The article contends that strategic approaches implicit in many existing rights theories cannot solve the deliberation-democracy dilemma, but rather allow one type of input (deliberative or democratic) or one type of institution (eg a court or legislature) to dominate. A further, institutionalist strand of research addresses how to realise DRT’s high normative ideals. The article suggests that court-focused rights models are frequently inadequate. Newer approaches, such as the mini-public model increasingly prominent in deliberative democracy, can best integrate democracy and deliberation for rights decision-making.

‘Deliberative Rights Theory’ evaluates what deliberative democratic scholarship can contribute to the constitutional question of how to protect fundamental rights and freedoms. That scholarship primarily focuses on what occurs within the legislature, judiciary and citizen assemblies to test the relationship between deliberation and rights. This article argues that what occurs within federalism can also significantly influence rights deliberation and thus should be part of the conversation. The article explores federalism’s effect on rights deliberation through two case studies from the COVID-19 pandemic. The first considers Australia’s decision to close its international border and the way federalism influenced discussion and debate on the right of citizens to return to the country. The second considers Canada’s decision to end the ‘Freedom Convoy’ against vaccination mandates and the way federalism affected discussion and debate on the right to protest. The article concludes by considering some directions for future research on the topic.

I champion a deliberative right to constitutional silence. It entitles individuals to reflect upon the arguments and reasons in favour or against changing or re-interpreting constitutional content under proper conditions. After reflecting on the place of silence in intellectual history and its features and virtues, I define the right to constitutional silence. It has four components: salience, time, reflection and publicness. Next, I discuss its grounds. I argue that it is an institutional legal right that citizens have in a deliberative constitutional democracy. This entails that, while there is a moral case for the right to silence, I here circumscribe my argument to the province of legality and constitutionalism. I finish discussing matters of institutionalisation. I offer three suggestions: two proposals about content and one about procedure. First, the right to silence applies primarily to deliberations about ‘thin’ constitutional matters found in preambles and introductory sections of constitutions. Second, it warrants public intervention in matters of public discourse of constitutional import, to avoid private power from interfering with the people’s sphere of constitutional reflection. Third, I adapt a proposal made elsewhere and suggest that a non-decisional interpretive mini-public could be a place to implement the right to silence.

The use of informal instruments in international governance has raised concerns about their legal status, including questioning whether they should be approved by domestic parliaments. These concerns are often dismissed by reference to the legal non-bindingness and claimed harmlessness of the instruments. Yet informal instruments have various effects in society as legal and political communications. These effects emphasize the need to address the democratic deficit of informal instruments resulting from their isolation from the parliaments and the undemocratic nature of international decision-making. This article proposes a twofold approach to address this deficit. At the domestic level, better engagement of parliamentarians through deliberative ‘feedback loops’ established between the parliament and the government should be sought, complemented by parliamentary approval of important informal instruments. At the international level, so-called ‘culture of deliberativism’, that is, a turn to deliberation by embracing deliberative democratic standards for better representation of public opinions, is proposed to induce democratic sensibility into international decision-making and its products. The legal status and potential bindingness should not be the focus of public debate on informal instruments; their subtle effects and undemocratic origin are the real ‘phantom menace’ in need of addressing.

This paper examines two major challenges to epistemic theories of democracy: the “authority dilemma” and the “epistemic gamble.” The first is a conceptual challenge, suggesting that epistemic democracy is inherently self-undermining. The second is a normative challenge, asserting that the case for democracy should not rely on precarious epistemic grounds. I argue that both challenges fail, demonstrating that epistemic theories of democracy withstand these two prominent objections.

The participants in deliberative mini-publics are typically randomly selected; therefore, mini-publics are often marketed as representative of the wider population. However, in practice, mini-publics are unlikely to be fully representative due to their small size and non-response bias. I report the results of a pre-registered survey experiment designed to assess the implications of deviations from statistical representativeness for citizens’ legitimacy beliefs (N = 1,308). Consistent with prior research, I find that the involvement of a mini-public in democratic decision-making can lead to substantial increases in perceptions of process legitimacy; however, even minor biases in the composition of mini-publics substantially decrease those gains while larger biases can wipe them out entirely. The results of this study temper hopes that mini-publics offer an easy fix to perceptions of low democratic legitimacy.

The core of the contract between economic and monetary union is set in not so much the formally legal, if economically irrational and practically contentious, divide of the Treaties, but rather, the rules for governing the right balance of EMU are found in its economic governance framework, set up to condition national budgetary policies into optimal function in service of Union monetary policy. Within those rules we can differentiate two ‘worldviews’ of constitutionalism. The first we may refer to as ‘optimal function EMU’ where sovereigns are equal, democracies may pick their own socio-economic policy and make equally valid claims to be managed by the conflicts law approach of cooperation within the preventive arm of the European Semester based on Article 121 TFEU, and where we may pretend the economic-monetary divide erected by law is a real, tangible phenomenon. The alternative version of constitutionalism is found beyond ‘optimal function EMU’, in fact, as soon as any risk to the model arises. This worldview institutes a strict legal hierarchy that establishes monetary supremacy over the economic realm. Within this setup, the very existence and proper function of the single currency rationalise the ultimate truth – that all Member States are equal, but some are more equal than others. Can conflicts law constitutionalism offer a way to recalibrate unity and diversity in a format fit for the purposes of the contemporary financial and economic context, while simultaneously re-claiming the space for national collective choice and protecting Union values?

How should a democratic assembly be designed to attract large and diverse groups of citizens? We addressed this question by conducting a population survey in three communities with institutionalized participatory deliberative democracy in Switzerland. To examine participatory disposition in light of both individual characteristics and design features of the assembly that citizens contemplate joining, the survey comprised a conjoint experiment in which each respondent was asked to indicate his or her likelihood of participating in democratic assemblies with varying design features. The main result is that design features emphasizing the communitarian character of the assembly increase citizens’ willingness to participate, especially among disengaged citizens. Moreover, citizens were found to be less attracted by both very consensual and very adversarial meeting styles. Rather, we found meeting styles combining both controversy and consensus to be most favorable to assembly turnout. The implication is that practitioners of participatory or deliberative democracy must engage in community-building to foster turnout and inclusiveness in democratic assemblies.

This article addresses power-sharing constitutions that include powers of veto wielded by discrete ethnonational groups. Such constitutional arrangements – seen, for example, in Northern Ireland and Bosnia – have often prompted severe deadlock, a problem that in turn threatens democratic functioning and raises the risk of renewed communal violence. We consider the use of ‘umpires’ of power-sharing constitutional systems to vet the use of vetoes and (potentially) to prevent their overuse or misuse. Power-sharing umpires are not uncommon in practice. However, as yet there is little scholarship evaluating how, in substance, power-sharing veto umpires should approach their task. Relying on deliberative democracy theory, the article outlines three forms of ‘deliberative agreement’ that, in principle, deeply divided groups may reach in the course of policymaking. It goes on to explain how existing proportionality doctrines drawn from federalism and rights cases can be imported into the power-sharing context to ‘scaffold’ these broad ideals. This approach, it is argued, may provide a more detailed, coherent and practically workable approach to umpiring power-sharing constitutions.

The neologism “mansplaining” captures an insidious dynamic in which men explain things to women that women already understand, assuming that, by virtue of being a woman, she lacks the man’s knowledge. Mansplaining has started to receive some attention in contemporary scholarship, conceptualizing the phenomenon and identifying its epistemic harm. My purpose is to consider mansplaining and its harms from the perspective of democratic theory. Setting the problem of mansplaining against the norms we expect of democracy—equality, inclusion, and recognition—I argue that mansplaining poses harms that are not only individual and epistemic but also collective and relational. I distinguish two types of mansplaining based on women’s expertise and experience to elaborate on its collective epistemic harms to decision making and its relational harm of political exclusion. Mansplaining poses further relational harms of inequality and misrecognition, undermining the equal social relations and social trust required for deliberation.

In a 1998 article, Bohman argued that the contemporary deliberative turn in democratic theory had reached its ‘coming of age’, as deliberative democrats began to show greater interest in the institutionalization of their proposal. Moreover, Bohman referred to this growing interest with an expression that was unprecedented at the time: ‘deliberative constitutionalism’. At present, deliberative constitutionalism has become one of the most original and relevant contemporary proposals. In this context, my article proceeds as follows. I begin by arguing that the contemporary deliberative turn in democratic theory also gave rise to a deliberative turn in constitutionalism—that is, a trend aimed at orienting constitutionalism and judicial review towards democratic deliberation. Next, I argue that, at that embryonic yet promising stage, deliberative constitutionalism had shortcomings that hindered the aim assumed since its origins. Finally, I argue that, over recent decades, these shortcomings have been finessed, which shows that deliberative constitutionalism has also reached its coming of age.